Judge won't dismiss lawsuit over Mason stun gun-related death

Man died after confrontation with police

A federal judge has refused to throw out a civil rights lawsuit in the case of an unarmed, mentally ill man who died during a confrontation with police in Warren County.

Doug Boucher, 39, died Dec. 13, 2009, after two officers in Mason shocked him with a Taser stun gun several times, kicked and repeatedly hit him with a baton -- all mostly after he had fallen face-first onto cement and stopped moving.

Police said Boucher, who had untreated bipolar disorder, punched an officer in the head when officers tried to take him into custody after a confrontation at a convenience store.

Boucher died of a skull fracture sustained after he was first shocked with the stun gun and fell to the ground, a coroner found.

In his Friday ruling, federal Judge S. Arthur Spiegel turned down the city of Mason's request to have the allegations against them and the officers dropped.

Spiegel says a reasonable juror could conclude that the officers used "gratuitous violence."

"What gives the court pause is that (the officers) repeatedly tased Boucher in such manner that a jury might find he was subjected to gratuitous violence from officers that momentarily 'lost it.'" Spiegel wrote.

"The Court DENIES Defendant Officers qualified immunity because it was established law at the time that it is objectively unreasonable to use a taser against an immobilized suspect who is not resisting, and the facts of this matter could be viewed to show they applied gratuitous violence against Boucher," Spiegel wrote.

Spiegel did dismiss the plaintiff's claim that stopping Boucher was a violation of his Fourth Amendment rights.

Boucher's parents, who live in Marion, Ind. – where Boucher lived until he was about 30 – are seeking unspecified damages.

Jennifer Branch, the Boucher family attorney, has said that the officers should have allowed Boucher to get in his car and leave because making a lewd comment is not a criminal offense, and that their escalating use of force was inappropriate.

Gary Becker, the Cincinnati attorney representing Mason and both officers, said he was "obviously very disappointed" in Friday's ruling and that he and his clients will need to decide whether to appeal it or go to trial in hopes of winning.

Spiegel set a trial date for June 18.

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